U.S. Secrecy and Transparency in the Use of Lethal Force

 

Much of the news in the first few months of the Trump administration has been dominated by the Russia scandal, James Comey, and the President’s Twitter feed. Falling below the radar of many news outlets, but something that is of growing concern, is the Trump administration’s attitude and approach to the use of force overseas. In its short time in power, the new administration has already shown itself to be more aggressive than its far from war-shy predecessor. U.S. strikes in Yemen have dramatically increased, and the average number of lethal operations per month in Pakistan, Somalia, and Yemen is nearly quadruple what it was under Obama. The limited policy restraints President Obama imposed on the use of lethal force in places far from traditional battlefields are at risk of being discarded by an administration that has already reportedly acted to loosen these rules in parts of Somalia and Yemen. The question remains whether, or how much, the Trump White House will ever commit to transparency and accountability—and what can be done to monitor the administration.

As highlighted in a new report published today by Columbia Law School’s Human Rights Clinic and the Sana’a Center for Strategic Studies, the heightened prospect of abuse and civilian harm under the new administration makes transparency more important than ever.

The report is the first comprehensive review of the extent of U.S. secrecy and transparency about drone strikes and lethal operations and covers a 15-year period (2002-17), focusing on Pakistan, Somalia, and Yemen, where, for many years, “targeted killings” and drone strikes have been carried out in great secrecy far from traditional battlefields. The report grades the U.S. government on its transparency record, marking the government according to a five-point scale ranging from “no/almost no transparency” to “complete transparency.”

Here we set out how transparent the U.S. government has been, present a new framework for transparency and our evaluation of U.S. practice between 2002-17, and run through the different reasons why transparency is important. We finish by looking ahead and providing some key data points that will aid in assessing the Trump Administration’s approach to this issue. We believe our model can also be applied to other countries, including U.S. allies and adversaries alike.

How Transparent is the U.S. Government?

Overall, we found that despite some important, if belated, steps toward greater transparency between 2010 and 2016, the U.S. government has been highly secretive. While the Bush era and the early part of the Obama presidency were marked by almost complete secrecy in this area, in the latter part of President Obama’s tenure the government made several key disclosures. These included the release of information about legal and policy constraints on, and procedures for, the use of lethal force abroad, as well as basic statistical data on civilian casualties. Notably, the U.S. government also started to provide official acknowledgments and release basic information about specific strikes in Somalia from 2014, and in Yemen from 2016. These reforms and disclosures were significant, not least because they showed how greater transparency was possible even in the face of internal resistance within the government. It will be important to see whether they are maintained, built upon, or discarded by the Trump administration.

The U.S. government, however, is still secretive in a number of important areas. Nearly all past strikes and civilian casualties remain unexplained, and operations and strikes in Pakistan remain cloaked in secrecy. Our research reveals that the government has officially acknowledged just over 20 percent of the more than 700 reported strikes in Pakistan, Somalia, and Yemen since 2002. There is a dearth of information about accountability for wrongdoing and the legal basis for specific strikes, and the U.S. government has also failed to explain key legal and policy rules, the specific terms that are relevant to such an assessment, and how they apply.

Our key conclusions are:

  1. The U.S. has improved transparency about the legal and policy rules applicable to the use of lethal force overseas, but the rules remain vague and poorly explained.
  2. Drone strike and lethal force practices are highly secretive, there has been limited, or no information provided to families or the general public about specific strikes, and civilian casualty data lack sufficient detail.
  3. The U.S. government has provided information on decision-making processes, particularly for the military, but the CIA’s decision-making processes remain highly secretive.
  4. The U.S. government has disclosed post-strike military investigative procedures and some aspects of Congressional oversight processes, but there is little or no transparency regarding specific follow-up, or actions taken to ensure accountability in individual cases.

In the report, we set out a concrete agenda for reform and a number of specific recommendations for the U.S. government and other governments. These include calling on the U.S. government to:

  1. Record, acknowledge, and explain to families and the public every civilian death, providing the name of the person killed.
  2. Provide detailed explanations for all past and future cases in which there are credible allegations of unlawful killings or civilian harm. In particular, provide urgent responses to ten serious cases that civil society groups have raised with the U.S. government.
  3. Promptly release the results of all government investigations into specific strikes, subject only to redactions where families of those killed, or those injured, have requested privacy or to ensure their physical safety, or only as strictly necessary for legitimate national security reasons.
  4. Disclose the legal basis for individual strikes, including by releasing all Office of Legal Counsel and other agency legal memoranda that set forth the grounds for the use of force against all persons targeted, whether U.S. citizen or non-citizen.

Evaluating Government Transparency and Secrecy about the Use of Lethal Force

We analyzed U.S. practice in four key areas: transparency about applicable law and policy; transparency about actual strike practices; transparency about government decision-making processes; and transparency about accountability. With a focus on U.S. practice in Pakistan, Somalia, and Yemen—where, for many years, strikes have been carried out far from traditional battlefields and in great secrecy—we graded the U.S. government’s record against a five-point color-coded scale ranging from “no/almost no transparency” to “complete transparency.”

Too often, the debate about transparency has become stuck in generalities. By breaking down transparency into its component parts, we hope to encourage a more specific and nuanced discussion about different types of information and the extent to which transparency is needed. Some of the key questions that we sought to answer were:

What kinds of transparency are important, and why? In which areas have positive steps been taken toward transparency? What exactly do U.S. government disclosures tell the public about U.S. policy and practice on the use of lethal force? What is unclear, uncertain, secret, not known?

The report includes a framework against which the U.S. and other governments that use lethal force abroad can be evaluated: a set of human rights-based “Ensuring Transparency in the Use of Force Benchmarks.”  These benchmarks were designed by the authors of the report and are “grounded in the interests and rights of people impacted by U.S. strikes, international law, and the promotion of the rule of law and democratic accountability.” Built into the framework is a recognition that secrecy is clearly necessary in certain circumstances—for legitimate national security reasons or to protect individuals whose lives may be at risk, for example. The framework is intended to aid policymakers, journalists, and others to assess government transparency and secrecy in the use of force over time.

In terms of legal and policy transparency, the U.S. government receives mostly low grades. Following years of almost complete secrecy, and following litigation and heavy domestic and international pressure, between 2010-2016 the U.S. government publicly explained important elements of its legal reasoning, the legal basis for strikes, and key policy standards. However, important details remain unclear:

Numerous memoranda explaining the legal basis for specific strikes and operations remain secret. Key legal and policy terms relevant to understanding who, how, and in what circumstances the U.S. government believes it can kill are not clearly defined, affording a wide latitude for interpretation with the potential to undermine constraints on the President’s authority to kill. Without adequate disclosures explaining how the United States interprets, defines, and applies key terms it is difficult both to understand precisely what are the United States’ views of the legal and policy limits on the use of lethal force and to assess whether the United States is accurately interpreting its binding international legal obligations.

Calls for transparency have been particularly vocal in relation to transparency about specific strikes and U.S. practices, where for many years there was almost complete secrecy. There have been changes. In 2014 in Somalia, and in 2016 in Yemen, the U.S. military began officially and regularly acknowledging strikes. However, for earlier strikes, and almost all strikes in Pakistan, there is almost no official acknowledgment at all.

The United States has almost never disclosed the names of civilians killed. It released details of investigations and assessments in relation to just a handful of the hundreds of strikes in Pakistan, Somalia, and Yemen, and has not given adequate responses to non-governmental organizations that have for years requested explanations about specific strikes in which there is credible evidence of civilian casualties and potential unlawful killings. It has officially named only one U.S. civilian, and one Italian civilian killed in a strike in Pakistan, as well as several other U.S. citizens it said were “not specifically targeted.” The unusually extensive information released about the strike that killed Weinstein and Lo Porto shows that the government can and should disclose such information about all such strikes. What message does this double standard send to the vast majority of those killed and injured in U.S. strikes who are citizens of Pakistan, Yemen, and Somalia?

Importantly, the U.S. government also began releasing civilian casualty data in 2016, and again in 2017. However, the U.S. government’s figures have been the subject of some debate, and criticized by a number of commentators. As the government has provided only very basic statistics, it is difficult to engage in a serious review or analysis of the U.S. government’s numbers. A more detailed breakdown is needed, including at least by country and location, and also by age and sex.

The U.S. government has provided more information regarding how decisions are made, particularly in recent years. In 2016, pursuant to litigation brought by the ACLU, the U.S. government released its Presidential Policy Guidance (PPG) about the institutional actors and processes involved in deciding to launch a strike in areas “outside of active hostilities,” although a number of important exceptional procedures remain unexplained.  This policy does not cover all targeting decision-making processes. For situations not covered by this policy, there is a glaring difference between CIA and military transparency. The U.S. military has disclosed a series of documents outlining its targeting decision-making process in generic form. However, it is very difficult to find publicly available information about CIA targeting decision-making processes.

The U.S. military is, and has been for some time, transparent about its accountability processes and protocols. However, again, very little information is available for the CIA. In terms of congressional oversight mechanisms, since 2012 there has been greater transparency, but a full assessment of congressional oversight is hindered by a lack of detailed information about recommendations made and actions taken by the executive branch in relation to the use of force. This makes it difficult to assess how meaningful this oversight is.

Crucially, there is no clear and accessible mechanism for those injured and the families of those killed in strikes in Pakistan, Somalia, and Yemen to bring forward allegations or to claim and receive compensation or condolence payments, nor is there much publicly available information about compensation or condolence payments provided. In U.S. courts, the government has also sought to prevent scrutiny of its strikes abroad by arguing for a broad application of the state secrets doctrine.

Why is Transparency Important?

While improved transparency is not the complete answer to the many concerns related to the U.S. use of force abroad, it is of critical importance. Transparency matters for the families of those killed and injured, compliance with international law, protecting the rule of law, democratic accountability, deterring wrongful behavior—particularly important when there is a heightened risk of abuse—and U.S. leadership and credibility. The report also explains how different types of transparency matter for different reasons:

Transparency about the facts—who was killed, what happened and where, for individual strikes and in overall statistics—matters to those injured and families of those killed in strikes, whose suffering currently remains unacknowledged and unaccounted for. It matters to the general public, who require such information to engage in informed debate about their government’s actions, and to hold their elected representatives to account.

Transparency about the laws and policies being applied to strikes, about the facts of strikes, and about the government’s decision-making and accountability processes, is essential for the rule of law, deterring abuse, enabling oversight, and establishing accountability for abuse. As a prerequisite to accountability, transparency is necessary to ensure that a government adheres to domestic and international legal limits. Rules that are secret fundamentally undermine the rule of law, and rules that lack clarity lend themselves to abuse and weaken the capacity of external actors to assess whether a rule is being implemented in practice. As former U.S. government officials have noted, transparency enhances U.S. government credibility and builds trust with key partners.

Transparency is also required by binding international law.  International law requires governments to be transparent about state conduct, and permits only narrow exceptions for secrecy in limited circumstances. Victims have a specific right to a remedy, which includes rights to disclosure and the truth.

Looking ahead: Data Points to Assess the Approach of the Trump Administration

It is still too early to make a full assessment of the Trump Administration’s approach to these issues, although there is already ample cause for concern. U.S. strike acknowledgments in Yemen, for example, have become even more generalized, with the U.S. military at times acknowledging 80 strikes at a time over a period of several months, rather than the more individualized acknowledgments that were the norm at the end of Obama’s tenure.

There are a number of key data points that can be used to assess whether transparency is improving under Trump, staying the same, or if this administration will instead repeat the mistakes of the early Obama years of excessive secrecy—an approach that undermined counterterrorism efforts and increased the suffering of the families of those killed and injured. A selection of these data points are listed below:

Legal and policy standards. Will the Trump Administration release a compendium of what it assesses to be its legal and policy rules on the use of force, as the Obama Administration did in December 2016? A Presidential Memorandum issued at the same time requires the National Security Council to coordinate a review and update this report on at least an annual basis.

Legal justifications. Will the U.S. government release the legal basis for specific strikes and operations, for example, pursuant to the ACLU’s litigation on the disastrous January raid in Yemen? Will the Trump Administration be transparent about any changes to the policy standards it applies to strikes, which are reported to be the subject of discussion within the Administration?

Strike acknowledgments. Will the Department of Defense, U.S. Central Command, and U.S. Africa Command regularly and individually acknowledge strikes? Will the CIA ever specifically acknowledge strikes that it has carried out? Will any strikes in Pakistan be specifically acknowledged?

Civilian harm. Will civilian casualties in individual cases be acknowledged? Will the names of civilian victims of strikes be released? Will the U.S. government continue to release its annual report on civilian casualties—the last one was issued by the Obama Administration in January 2017—and will it supply the much-needed additional details?

 

Image credit: Daniel Greenfeld 

About the Author(s)

Alex Moorehead

Lecturer-in-Law at Columbia Law School, Director of the Counterterrorism, Armed Conflict and Human Rights Project at Columbia Law School's Human Rights Institute Follow him on Twitter (@apmoorehead).

Waleed Alhariri

Head of the New York Office - Sana’a Center for Strategic Studies (SCSS), Fellow-in-Residence at Columbia Law School Human Rights Institute Follow him on Twitter (@WaleedAlhariri).